So You Want To Be An Expert Witness?

Make Sure You Know the Issues

September/October 2009

ByBY MICHAEL DECELLES, PH.D., AND HOWARD SPARKS, PH.D., CPA

Stan had been an accountant for about 10 years for several public companies. But now he was building his own fraud examination and forensic accounting firm and wanted to provide expert witness testimony.

A local attorney hired Stan for his first case - an insurance fraud trial. To prepare for his testimony, Stan thoroughly studied expert witness techniques and exhaustively researched similar cases. During his testimony, he listed in detail his education and work credentials and thoroughly discussed several multiple precedent-setting cases in the area.

In his conclusion, Stan itemized similarities between the current and the precedent-setting cases. He thought he'd done a thorough job for his client. So Stan was shocked when the judge later ruled his testimony inadmissible because of excessive reliance on precedents and concluded that Stan had merely replicated the findings of prior cases, rather than drawing conclusions from the specific facts of the current case.

Had Stan more carefully studied the past and current standards for the admissibility of expert testimony, he would have been familiar with the rules and case law. And so he would have known that structuring his expert witness testimony to merely replicate findings from precedent-setting cases would possibly cause the judge to question his competence and objectivity.

This fictitious case shows that as more CFEs take the stand to testify in court, they need to know what will qualify them as credible expert witnesses. Over the last few decades as the U.S. Supreme Court has broadened the parameters to admit a somewhat wider range of expert testimony, it has become increasingly important for fraud examiners to stay abreast of trends in admissibility standards.

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